Affirmative Defenses

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In Barton v. Serve All Help All Inc., No. 3:21-cv-5338 RJB, 2022 U.S. Dist. LEXIS 161487, at *8 (W.D. Wash. Sep. 7, 2022), Judge Bryan denied summary judgment all around, but also denied a TCPA defendant's jurisdictional motion. Defendant argues that the Plaintiff cannot show that he has been "injured in fact" because he has not shown that he has… Read More

In Williamson v. Irving K Motor Co. LLC, Civil Action No. 3:21-CV-1599-L-BH, 2022 U.S. Dist. LEXIS 101052, at *15-18 (N.D. Tex. June 7, 2022), Judge Ramirez denied a motion to dismiss a TCPA claim brought on the argument that SCOTUS' AAPC rendered the TCPA unenforceable from 2015 to 2020. A small number of district courts, including the Eastern Districts of Texas… Read More

In Hogans v. Charter Communs., Inc., No. 5:20-CV-566-D, 2021 U.S. Dist. LEXIS 182992, at *22-27 (E.D.N.C. Sep. 24, 2021), Judge Dever applied AAPC retroactively, and examined the various options for applying AAPC. In AAPC, a majority of the Court left unanswered the question of retrospective liability under section 227(b)(1)(A)(iii) for the time period in which it was unconstitutional. Three possible… Read More

In Lindenbaum v. Realgy, Ltd. Liab. Co., No. 20-4252, 2021 U.S. App. LEXIS 27159, at *2-4 (6th Cir. Sep. 9, 2021), the Court of Appeals for the Sixth Circuit found that the District Court erred in dismissing a TCPA claim based on the period of unconstitutionality found in Barr. In 1991, Congress prohibited almost all robocalls to cell phones and landlines.… Read More

In Buell v. Credit.com, No. 4:21-cv-01055-KAW, 2021 U.S. Dist. LEXIS 142763, at *1 (N.D. Cal. July 30, 2021), Judge Westmore refused to strike TCPA class allegations following Barr v. APAC.  On April 19, 2021, Defendant Credit.com, Inc. filed a motion to strike Plaintiff Angela Buell's class allegations on the grounds that the recent United States Supreme Court decision in Barr… Read More

In Mey v. Medguard Alert, No. 5:19-CV-315, 2021 U.S. Dist. LEXIS 80083, at *13-14 (N.D.W. Va. Apr. 27, 2021), Judge Tates found that the SCOTUS' holding in Barr didn't render the TCPA unconstitutional for non-government backed debts. Those courts which have found the TCPA to be valid with regard to non-Government debt calls, even in light of Barr,include McCurley, supra; Less v. Quest… Read More

In Berman v. Freedom Fin. Network, No. 18-cv-01060-YGR, 2019 U.S. Dist. LEXIS 150810, at *3 (N.D. Cal. Sep. 4, 2019), Judge Gonzalez-Rogers found no good faith defense to a TCPA claim. The alleged facts were as follows: In the instant action, plaintiff Daniel Berman, on behalf of himself and a putative class, alleges violations of the Telephone Consumer Protection Act… Read More

In Gilchrist v. First National Bank of Omaha, 2018 WL 317267, at *2–3 (W.D.Wash., 2018), Judge Pechman dismissed a federal TCPA claim because it was compulsory to a debt collection action filed in the state court. There is no question in the Court's mind that there is a logical relationship between (1) the credit agreement between the Bank and Plaintiff, (2)… Read More

In Gold v. Ocwen Loan Servicing, LLC, 2017 WL 6342575, at *2 (E.D.Mich., 2017), Judge Murphy granted in part and denied in part a TCPA defendant's motion to dismiss. Plaintiff's TCPA claims regarding phone calls made prior to May 10, 2013 are time barred. TCPA claims are subject to a four-year statute of limitations. See 28 U.S.C. § 1658(a); see… Read More

In Golan v. Veritas Entertainment, LLC, 2017 WL 3923162, No. 4:14CV00069 ERW (E.D. Mo. September 7, 2017), Judge Webber found, after a trial on the merits, that the TCPA’s damages provision has constitutional due process limitations and, therefore, reduced the statutory damages to be awarded to $10 per call. The violations in this case involved the use of automated telephone equipment… Read More

In Greenley v. Laborers' International Union of North America, Defendant, and United States of America, Intervenor., 2017 WL 4180159, at *1 (D.Minn., 2017), Judge Wright found that a TCPA claim brought against a Union survived a Motion to Dismiss and constitutional challenge.  The facts were as follows: Greenley's amended complaint alleges that during a sixteen-month period from November 14, 2014, through March… Read More

In Connector Castings, Inc. v. Newburg Road Lumber Co., 2017 WL 3621329, at *2 (E.D.Mo., 2017), Judge Webber refused to strike an affirmative defense lodging a constitutional challenge to the TCPA. In its first affirmative defense, Defendant asserts, in relevant part, “The Telephone Consumer Protection Act…violates the First Amendment of the United States Constitution on its face and as applied.”… Read More

In Golan v. Veritas Entertainment, LLC, 2017 WL 2861671 (E.D. Mo. 2017), Judge Webber held that there could be due process limitations on the amount of damages recoverable in a TCPA class action. In their Motion for Partial Summary Judgment on the Issue of Damages [ECF No. 239], Plaintiffs ask the Court to determine the amount of damages to be… Read More

In Lee v. Loandepot.com, LLC, 2016 WL 4382786, at *5 (D.Kan., 2016), Judge Melgren held that the Husband, as a regular user of the wife's cell phone, had standing to sue under the TCPA. Moving on to the legal issue at hand, the 2015 FCC Order defines the term “called party” as the “subscriber, i.e., the consumer assigned the telephone… Read More

In Vazquez v. Triad Media Solutions, Inc., 2016 WL 155044, at *4-5 (D.N.J., 2016), Judge Walls struck an affirmative defense in a TCPA text message case asserting EBR, strikes a ruinous penalty affirmative defense, but allows a First Amendment challenge to proceed.  Judge Walls  found EBR not properly asserted in a text message case because "The Third Circuit has held that the… Read More

In Springer v. Fair Isaac Corp., 2015 WL 7188234, at *5 (E.D.Cal., 2015), the Court addressed what affirmative defenses may be pleaded in a TCPA action.  The Court allowed the affirmative defense of "good faith" to proceed. Defendant's third affirmative defense of reasonable and good faith states: "Defendant's actions were taken in good faith, in reliance upon information provided by its customers… Read More

In Danehy v. Time Warner Cable Enterprise LLC, 2015 WL 5534285, at *2-3 (E.D.N.C.,2015), Judge Flanagan adopted a Magistrate's ruling on summary judgment in favor of a TCPA defendant. In his objections, plaintiff takes issue with the magistrate judge's determination that SkyCreek did not utilize an ATDS when making calls to plaintiff's telephone. The court does not reach the merits of… Read More

In Savage v. Citibank N.A., 2015 WL 4880858 (N.D.Cal., 2015), Judge Freeman addressed whether a Rosenthal Act/TCPA Defendant's affirmative defenses should be stricken due to factually inadequate pleading. Defendants' sixth affirmative defense of unclean hands, eighth affirmative defense of laches, ninth affirmative defense of waiver, tenth affirmative defense of estoppel, eleventh affirmative defense of justification, and twelfth affirmative defense of ratification… Read More

In Wallace v. Optimum Outcomes, Inc., 2015 WL 627944 (E.D.N.C. 2015), Judge Flanagan entered summary judgment for a TCPA plaintiff who had told a debt collector not to call anymore on one cell phone number but continued to receive calls on another cell phone number. Pertinent to the facts of this case and the earlier one intertwined with it, initiated… Read More

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